At our firm, we often see foreclosure cases where the lender is trying to foreclose after the borrower defaulted on a loan modification. What is required under Florida law for the lender to foreclose when the mortgage has been modified?
A few important things to know:
Under existing case law, the lender must allege in its foreclosure lawsuit that there has been a default on the loan modification and must attach a copy of the loan modification to its lawsuit for foreclosure. See Kuehlman v. Bank of America, N.A. (Fla. 5th DCA 2015). If the lender fails to do so, its case can be dismissed. Please keep in mind that case law now holds that modification of a mortgage is an affirmative defense that must be plead by the Defendant in the foreclosure case and failure to do so will typically result in a waiver of that defense. Bank of New York Mellon v Garcia See Bank of New York Mellon v. Bloedel (Fla. 2d DCA 2018).
It is a plus that the courts of appeal require the lender to plead and prove the loan modification because the amount owed can change with a loan modification and the lender should be required to prove the correct amount.
Another important question is whether the lender is required to produce the original loan modification agreement. The answer in most cases is no. Our appellate courts have held that a loan modification is not a negotiable instrument and therefore the original, wet-ink signed modification is not required to be produced for the lender to prevail in the foreclosure. See Bank of New York Mellon v. Garcia (Fla. 3d DCA 2018).
Finally, there are some interesting issues that arise in terms of the lender trying to prove legal standing to enforce the loan modification when it is not the lender who originated the loan modification. I will write a separate blog article on the topic of asserting a defense of lack of standing to defeat a lender’s effort to foreclose on a modification.
Ryan C. Torrens, Esq.
Consumer litigation attorney